39A-5-208.  Individuals who may serve on a military court.

(1)  A commissioned officer off or on duty with the National Guard may serve on a military court for the trial of any individual brought before the court for trial.

Terms Used In Utah Code 39A-5-208

  • Accuser: means an individual who:
(a) signs and swears to charges;
(b) directs that charges nominally be signed and sworn to by another; or
(c) any other individual who has an interest other than an official interest in the prosecution of the accused. See Utah Code 39A-5-102
  • Commissioned officer: includes a commissioned warrant officer. See Utah Code 39A-5-102
  • Convening authority: means the governor or the adjutant general. See Utah Code 39A-5-102
  • Enlisted member: means an individual in an enlisted grade. See Utah Code 39A-5-102
  • Grade: means a step or degree in a graduated scale of office or military rank, established and designated as a grade by law or regulation. See Utah Code 39A-5-102
  • Military: means any or all of the armed forces of the United States. See Utah Code 39A-5-102
  • Military court: means a court-martial, a court of inquiry, or a provost court. See Utah Code 39A-5-102
  • National Guard: includes part-time and full-time active guard and reserve (AGR), and the Utah State Defense Force when called to active duty by the governor. See Utah Code 39A-5-102
  • Officer: means a commissioned or warrant officer. See Utah Code 39A-5-102
  • Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
  • Rank: means the order of precedence among members of the armed forces. See Utah Code 39A-5-102
  • Superior commissioned officer: means a commissioned officer superior to another in rank or command. See Utah Code 39A-5-102
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
  • Unit: means any regularly organized command of the National Guard. See Utah Code 39A-5-102
  • Writing: includes :Utah Code 68-3-12.5
    • (2)  A warrant officer off or on duty with the National Guard may serve on a military court for the trial of any individual, other than a superior commissioned officer, who is brought before the court for trial.

    (3) 

    (a)  An enlisted member of the National Guard who is not a member of the same unit as the accused may serve on a military court for the trial of any enlisted member brought before the court for trial.

    (b)  However, an enlisted member may serve as a member of a court only if before the conclusion of a session called by the court under Section 39A-5-216, or in the absence of the session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on the court.

    (c)  If the request is made under Subsection (3)(b), the accused may not be tried by the military court when enlisted members comprise less than 1/2 of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies.

    (d)  If eligible members cannot be obtained, the court may be assembled and trial held without them, but the convening authority shall make a detailed written explanation of why eligible members could not be obtained. This statement shall be appended to the court record.

    (4) 

    (a)  An individual subject to this chapter may be tried by a military court, but no member of the court may be junior to the individual in rank or grade.

    (b)  When a military court is convened, the convening authority shall detail as members of the court individuals who are best qualified for the duty by age, education, training, experience, length of service, and judicial temperament.

    (c)  A member is not eligible to serve as a member of a military court if the member:

    (i)  is the accuser in the case;

    (ii)  is a witness in the case;

    (iii)  has acted as investigating officer in the case; or

    (iv)  has acted as counsel in the case.

    (5)  An action or proceeding may not be prosecuted or maintained against a convening authority, member of a military court, or individual acting under the court’s authority or reviewing the court’s proceedings because of:

    (a)  the imposition, approval, or execution of any sentence;

    (b)  the imposition or collection of a fine or penalty; or

    (c)  the execution of any warrant, writ, execution, process, or mandate of a military court.

    Renumbered and Amended by Chapter 373, 2022 General Session

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